1. Although grounds 4 to 9, inclusive, of the amended motion for new trial are set up as special grounds following the general grounds numbered 1 to 3, inclusive, all of them are merely elaborations of the general grounds. In the brief of the plaintiff in error, these grounds are summarized as follows: "(1) The verdict was without competent evidence to support it because: (a) there was no competent evidence of mental incapacity to justify canceling deeds; (b) there was no competent evidence of fraud to justify canceling deeds and excusing restitution; (c) there was no competent evidence of fraud to support allowance of attorney's fees." It is the exclusive province of the jury to determine the credibility of witnesses and make findings of fact. Smith v. Aldredge, 192 Ga. 376 (2) (15 S. E. 2d, 430); Williams v. Barnes, 181 Ga. 514 (2) (182 S. E. 897). The question of mental capacity to made a deed is a question of fact to be determined by a jury. Jones v. Hogans, 197 Ga. 404 (29 S. E. 2d, 568). "Fraud and undue influence can rarely be established by direct proof, but slight evidence of fraud and undue influence may authorize a jury to cancel a deed." Arnold v. Freeman, 181 Ga. (354 (3) (183 S. E. 811). As shown by the statement of facts in the instant case, there was competent and sufficient evidence to authorize the verdict, and the general grounds, as well as grounds 4 to 9, inclusive, are without merit.
2. It is complained in ground 10 that a verdict and judgment for the plaintiff, were unauthorized in the absence of any lawful tender and offer of restitution. Assuming, but not deciding, that the acts of the defendant shown in the statement of facts did not amount to a tender or waiver of tender, it nevertheless appears from competent evidence of a witness that the grantee at the time he took the deeds had notice of the insanity of the grantor, and failure to make restitution or tender of restitution would not prevent cancellation of the deeds at the instance of the guardian appointed subsequently. Dean v. Goings, 184 Ga. 698 (2) (192 S. E. 826); Cheves-Green & Co. v. Horton, 177 Ga. 525 (2) (170 S. E. 491); Stanley v. Stanley, 179 Ga. 135 (175 S. E. 496).
3. In ground 11 of his amended motion, the plaintiff in error contends that the court erred in charging the jury as follows: "To establish incapacity in the grantor, she must have been shown to have been, at the time the deed was made, non compos mentis, which means entirely without understanding. To establish incapacity in the grantor, it is sufficient to show that she did not have such mind and reason equal to a clear understanding of the nature and consequence of her act in signing the deed; for ode who has not the strength of mind and reason equal to a clear and full understanding of her act in signing the deed is one who is afflicted with an entire loss of understanding. If the plaintiff has shown by a preponderance of the evidence in this case that at the time of signing either of the deeds referred to she was without the mental capacity requisite under the rule given you in charge, then you would find in favor of this contention." The charge complained of was not erroneous as stating an incorrect principle of law or as being confusing or for any reason assigned. Durrett v. McWhorter, 161 Ga. 179, 186 (9) (129 S. E. 870); DeNieff v. Howell, 138 Ga. 248 (5) (75 S. E. 203); Taylor v. Warren, 175 Ga. 800 (1) (166 S. E. 225); Ison v. Geiger, 179 Ga. 798 (1) (177 S. E. 596); Higgins v. Trentham, 186 Ga. 264 (2) (197 S. E. 862).
4. The final contention of the plaintiff in error is that the court erred in the failure to submit a charge he had requested in writing as follows: "The plaintiff charges that the defendant in this case has been stubbornly litigious and has caused her unnecessary expense, and asks judgment against the defendant for attorney's fees to be fixed by the jury, by reason of the bad faith of the defendant and his stubborn litigiousness and unnecessary trouble and expense caused the plaintiff. Code section 20-1404 of the Code of Georgia says: 'The expenses of litigation are not generally allowed as part of the damages; but if the defendant has acted in bad faith or has been stubbornly litigious or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.' It is to be noted that the Code section quoted above contains the clause 'or has caused the plaintiff unnecessary trouble and expense.' It may be assumed that every suit causes the plaintiff some trouble and expense, but this is not what the statute has in mind. One of the provisions of the bill of rights contained in the Constitution of this State declares that 'No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this state in person or by attorney, or both. This is a privilege to the defendant as well as to the plaintiff. Where there is a bona fide controversy for the tribunals to settle, and the parties cannot adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation.' " It will be noticed that practically all of the requested charge, except the first sentence, consists of an isolated excerpt quoted from the opinion in West v. Haas, 191 Ga. 569, 575 (13 S. E. 2d, 376), but omitted therefrom is the distinction that the court, speaking through Mr. Justice Grice, had made between the case he was writing and another, in which he said: "In O'Neal v. Spivey, 167 Ga. 176, 180 (145 S. E. 71), where an award by the jury of attorney's fees was upheld, they were claimed, so it is stated in the opinion, by reason of a stubborn and litigious spirit shown by the defendant in connection with the transaction. They are not asked for here on any such ground." In O'Neal v. Spivey, supra, after quoting the section of the Code, now 20-1404, then 4392 of the 1910 Code, the court held: "Any one of these three species of bad conduct may authorize a recovery of attorney's fees under the provisions of this Code section. Acting in bad faith, or being stubbornly litigious, or causing the plaintiff-unnecessary trouble or expense might in a particular case suffice to authorize a finding for attorney's fees." Under the facts of the instant case and the evidence, as shown in the statement of facts herein, the requested charge was not properly adjusted thereto and it was not error for the court to refuse to give it in the charge to the jury.
On December 17, 1946, Gertrude Dumas, an alleged incompetent, through her legal guardian, Kitty Lee Austin, brought her equitable petition for cancellation of certain deeds and other relief against six named defendants, including LeRoy R. Thomas. The petition was amended three times, one of which amendments struck, all of the original, allegations and inserted others. After an answer was filed, denying the material, allegations of the petition, the parties entered into a stipulation in the case, whereby LeRoy, R,. Thomas, was the only remaining defendant and the rights of the parties who had been dropped as defendants were to be protected. The issues as made by the pleadings, were as follows: Did Gertrude Dumas have sufficient mental capacity to convey to LeRoy. R. Thomas the house and lot in Macon where she lived, by a security deed dated January 20, 1945, and a quitclaim deed dated January 6, 1946? Did LeRoy R. Thomas fraudulently procure said deeds from Gertrude Dumas? Was restitution of certain sums necessary to be made to LeRoy R. Thomas? Was the plaintiff entitled to attorney's fees in the nature of damages?
Among those testifying in behalf of the plaintiff in this case were all the members of the lunacy commission, consisting of the county attorney, county physician, and another physician, who on October 17, 1946, had found that Gertrude Dumas was a "lunatic, moron, and person of unsound mind, and incapacitated to manage her affairs, and recommend that a guardian be appointed for her person and property." All of said lunacy commission members testified that Gertrude Dumas did not have sufficient mental capacity to execute deeds. The physician member of said commission testified that there was symptom evidence that Gertrude Dumas had for some considerable time suffered from pellagra, and that her mental impairment to the extent of being unable to know the consequences of deeds and contracts dated back "for years, not just the last few weeks or few months or last few days." There was testimony from a number of neighbors and acquaintances of Gertrude Dumas, who gave details of their observation of her over a long period of years previous to the trial. They testified that Gertrude Dumas was incapable of knowing the consequences of deeds and contracts; and while their testimony was not specifically addressed to the particular days or time of day on which the deeds were executed, it included the whole period of time before, at the general time of, and after the execution of the deeds in question. One witness testified that, about ten years before the trial, he had a conversation with LeRoy Thomas in which the condition of the mind of Gertrude Dumas was discussed, and the witness said: "Preacher LeRoy Thomas told me her mind was bad then. I agreed with him that it was bad." Willie J. Williams testified that, as a deacon in the church and friend of the husband of Gertrude Dumas after said husband's death, he arranged for repairs to the house where Gertrude resided to be obtained from money which he advanced and secured from Mrs. M. H. Lewis, for which a loan deed for $297.71 was taken from Gertrude Dumas to Williams and by him transferred to Mrs. Lewis. Williams testified further: that he had knowledge that Gertrude Dumas was mentally incapable of knowing the consequences of a deed; that he was repaying to Mrs. Lewis the monthly instalments on the loan out of his own personal funds and without baking any demand on Gertrude Dumas for repayment; and that, while he was so doing, LeRoy R. Thomas voluntarily paid off the Williams and Lewis indebtedness without being called on for payment. In behalf of the defendant, two witnesses in whose offices the deeds in question had been executed testified to the effect that in observing Gertrude Dumas at the time she signed the deeds she appeared to have sufficient mental capacity. In his own behalf LeRoy R. Thomas testified: that Gertrude Dumas had sufficient mental capacity to execute the deeds; that he paid off the previous indebtedness at her request and for her best interest and welfare; that he had provided an arrangement stated in the quitclaim deed for her to reserve a room and kitchen, and later there was an undated written agreement signed by him to provide a place for her elsewhere as long as she lived; that he had in fact provided a place for her; and that he had expended a total of $465.72 for Gertrude Dumas, consisting of the previous security deed repayment and other moneys advanced by him. Several witnesses testified as to the market value of the house and lot involved, and their figures ranged from $2250 to $3000 approximately. There was testimony by the plaintiff's legally appointed guardian, corroborated by other independent witnesses, to the effect that before the bringing of the present suit she had endeavored to pay LeRoy R. Thomas the amounts which he had advanced for Gertrude Dumas, but that Thomas failed and refused to divulge the amount, saying to her that she should see his lawyer. On the trial of the case, the jury returned a verdict in favor of Gertrude Dumas and against LeRoy R. Thomas, canceling the security deed and canceling the quitclaim deed, finding that Thomas was not entitled to any reimbursement, and finding that Thomas should pay $350 as attorney's fees in the nature of damages. A judgment and decree of the court were entered in conformity with the verdict. The plaintiff in the court below made a motion for new trial and amended the same. It was overruled by the trial judge. The case was brought to this court on exceptions to that judgment.
Edward F. Taylor and D. L. Churchwell, contra.